Victoria: Elder Abuse and the burden of proof

Anyone who cannot see that coercion and abuse of the elderly and infirmed confirms that assisted suicide and euthanasia can never be made safe from abuse really isn't paying attention.

The Melbourne Herald Sun newspaper reports on new information about Elder Abuse in Victorian nursing homes:

"According to new police statistics, in nursing homes last year there were more than 100 assaults almost 70 sexual assaults and 180 thefts reported.

"A spokeswoman for the Victorian Office of the Public Advocate said 60 per cent of cases brought to its attention involved financial abuse.

"We also see significant numbers of cases where vulnerable older people have been physically, verbally, emotionally or sexually abused," the spokeswoman said. "Usually the abuser is a relative â€” often a child or their spouse â€” but residents of aged care facilities are particularly vulnerable to abuse by the people who are supposed to care for them."

Given the nature of abuse, the data provided is likely to represent only a small percentage of the reality. Hitesh Patel, UK forensic partner at KPMG, commenting on their 2015 survey of financial abuse of the elderly commented that:

"It's also likely these cases are just the tip of the iceberg - frauds of this nature often go unreported as embarrassed victims seek to 'keep it in the family' and 'forgive and forget'."

Nursing home abuses are not likely to be initiated by family members but by third parties charged with the care of the person. They are no less henious and possibly more so.

Cases have also been noted where people have deliberately targetted elderly people living alone for abuse. In 2014, The Australian reported on case where a woman who systematically stole the assets of the person she was caring for to fuel a gambling habit and then murdered him to try and cover up.

In recent years various Australian Parliaments have rightly devoted significant resources in examining the problem of elder and disability abuse in our community. The South Australian Parliament created a Select Committee to examine Elder Abuse late in 2016.

Abuse of elders cannot be separated from disability abuse simply because the frail aged have acquired age-related disabilities just as those with a degenerative illness accumulate disabilities as their illness progresses.

In October last year in the context of a euthanasia debate, we heard from people living with disabilities about abuse, about discrimination and about the devaluing of their lives that draws them to genuinely fear the possibility of euthanasia and assisted suicide in such circumstances. In a very real sense, they were speaking up for elderly people as well.

Disability abuse and elder abuse are undepinned, fed and abetted by 'ableism' and 'ageism'. A Ministerial Advisory Committee's evidence to the New South Wales inquiry last year put it this way: (read 'Ageism' as referring to both)

"Ageism, when combined with other domains of disadvantage, such as poverty, disability, and cultural and linguistic diversity, may put some older people at greater risk of becoming victims of abuse. As ageist attitudes become entrenched in our culture, older people may internalise feelings of low self worth, become more passive and feel more dependent. Such perceptions can lead to an older person believing that they deserve to be treated more poorly than others and avoid speaking up when experiencing abuse from family members or a caregiver. Many older people may not be willing to report elder abuse because of the isolation that comes from a lack of self esteem and a feeling of invisibility. Ageism can also affect our understanding of the prevalence and severity of elder abuse and cause many instances of abuse to go unnoticed."

So, there's been a cultural slide towards viewing elders and people with disability as 'less than'. That can be a two-way street where disabled people and the elderly may take on a sense that they are somehow less worthy of the goods of life, of respect, self-determination etc. precisely because that's how the community views their existence.

Our elderly and frail already think they are burdens on their families and society. We've been subtly telling them that for years in one way or another. Take a look at any of the TV advertisements for funeral insurance plans that have the elderly people say: '...because we don't want to be a burden...'. A clear message that our elders are burdens, or at least they may think they are.

We should applaud all and every effort by the authorities to stop the abuse of elderly and disabled people. But the law can only do so much, though the effort - every effort - is worth it. Sadly, so long as unscrupulous people exist, abuses in every form are likely to exist. We can and must make every effort, but we kid ourselves that the abuses will some day cease.

Reading the New South Wales Parliamentary Committee report from last year I was struck and shocked by the many examples of abuse that were instigated or abetted by family members, carers and other professionals. It is not difficult to make the connection between this kind of abuse and the risks to the elderly and people living with disability of euthanasia and assisted suicide laws.

Yes, some coercion may be uncovered or suspected. Hopefully in those cases the path to premature death might be averted. But just as the reported cases of elder abuse are understood to be only a small proportion of the total, it is naiave in the extreme to believe that and supposed 'safeguard' system of euthanasia laws will ever uncover every subtle pressure, every history of abuse and mistreatment that might lead a person to genuinely believe that the assisted suicide option is best for their family.

In Elder Abuse we are dealing with a modern phenomenon that is increasing proportionate to our aging population. We did not legislate to create the opportunity for abuse and even legislating to try to stop it will not completely eradicate it.

With euthanasia and assisted suicide we would be extending the possibility of such uncovered abuse to the ultimate in abuse - premature death. We will have created the possibility that no checks and balances can possibly contain satisfactorily.

Whether you consider this a significant risk or a lesser risk, it is still a risk. Our parliaments should never legislate to accept such risks, large or small, when doing so means they would be accepting that some people may die who really did not want to but took the path under abusive pressure.

There is a burden of proof here; the precautionary principle lays the requirement of proof that a particular legislative model will eliminate such risks as a burden upon those proposing any law.

In Victoria right now, that burden sits with the Premier, Daniel Andrews. The parliamentary committee that reported last year ducked the issue, the new panel seems likely to be a rubber stamp. But it is ultimately to the Premier, his Attorney General and Health Minister who are working towards presenting a bill in July under government business, to make this case.

Absent such proofs the Premier will be putting his own citizens at risk for the sake of an ideology driven by an elite few. No government should behave that way.